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TMI Blog1987 (9) TMI 167X X X X Extracts X X X X X X X X Extracts X X X X ..... sistant Collector rejected the refund claim as barred by time. The appeal against the said order was dismissed by the Collector (Appeals) under order, dated 21-10-1983..This appeal is against the said order. 2. We have heard Shri A.C. Gulati, Advocate, for the appellants and Shri Vineet Kumar, SDR, for the respondent. 3. This Tribunal had held in (Miles India Ltd. (1983 E.L.T. 1026) that in a claim for refund preferred under Section 27(1) of the Customs Act the period of limitation prescribed therein will have to be applied and that it will not be open to the party to seek recourse to the provisions of the Limitation Act on the ground that the payment of duty was under a mistake, inviting the applicability of Section 72 of the Indian Co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... rt from its earlier decisions. 5. In any event the question is whether there are such valid grounds to depart from the earlier decisions of this Tribunal following the decision of the Tribunal in Miles India which had been upheld by the Supreme Court also as earlier mentioned. Shri Gulati s contention is that the provisions of Rule 11 of the Central Excise Rules or Section 11B of the Central Excises and Salt Act or Section 27 of the Customs Act (for applications for refund) would apply only when the refund was with reference of duty and that where money had been collected, though as duty, without authority of law, the above provisions would have no application. In support of his contention, he cited various decisions as below : 1. Andhr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the Central Excises and Salt Act to the effect that no claim for refund could be made except under the provisions of the said Act. In the L.D. Textile case, it was in fact observed that even the 3 year limitation would not apply in such cases. 7. But all these judgments have proceeded on the basis that the High Courts could exercise their powers under Article 226 of the Constitution of India for grant of relief without reference to the periods of limitation prescribed under the respective Act in pursuance of the provisions of which the money had been collected as duty. It is in the above background that the various High Courts have held that in exercising such prerogative powers the High Courts are not confined by the periods of limitatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... riod of limitation prescribed under the said section. This rejection having been upheld by the higher authorities the assessee approached the Supreme Court under Article 136 of the Constitution of India. That is to say the approach to the Supreme Court was not in exercise of its prerogative powers under Article 32, but its power under Article 136. The Supreme Court upheld the orders of the lower authorities applying the period of limitation prescribed under Section 27 of the Customs Act. It is therefore, clear that except when exercising their prerogative powers the Courts also applied the period of limitation prescribed under the respective Acts or rules in considering the legality of the orders passed by the authorities constituted under ..... X X X X Extracts X X X X X X X X Extracts X X X X
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